Tuesday, March 24, 2020

Everything is Connected

Yale graduates read and write about whatever we want, and call it law.” For example, the best class I took in law school was Harold Bloom’s Shakespeare seminar. Nevertheless, here’s something I never thought I’d put on my bucket list, let alone cross off:  the most important Supreme Court brief Ive ever written ends with a paragraph from Malcolm Gladwell’s latest book.

Heres how the Supplemental Brief I submitted to the Washington Supreme Court last week concluded:

“The Answer to Defendants Petition for Review characterized this case as involving two vexing perennial issues: the systemic challenges faced by under-resourced pro se litigants, and the decline in professionalism by members of the bar. Let us cease mincing words. Hand-wringing over a decline in professionalism is a too-polite euphemism for the trouble caused by the increasing proportion of lawyers who cannot or will not distinguish between zealous advocacy and plain old lying.…

In this case, the collective tragedy of the Attorney General’s Office, Ogden Murphy Wallace, Western Washington University, and Roger Leishman began with a few boneheaded Human Resources mistakes by the State’s top employment attorneys. Implicit and explicit bias made things worse along the way. But the saga became a disaster only when lawyers started lying, and then wouldn’t stop. The legal system is simply not equipped to handle this many lies from members of the bar. 

In his new book, Malcolm Gladwell focuses on one of the biggest puzzles in human psychology

why are we so bad at detecting lies? You’d think we would be good at it. Logic says that it would be very useful for human beings to know when they are being deceived. Evolution, over many millions of years, should have favored people with the ability to pick up the subtle signs of deception. But it hasn’t.

M. Gladwell, Talking to Strangers 72 (2019). According to Gladwell, humans generally benefit from defaulting to credulity, both as individuals and as a society. 

Nevertheless, truthfulness still matters. Fortunately, lawyers and judges can rely on powerful truth-revealing tools, including the adversary system itself. Unfortunately, these traditional protections become increasingly ineffective when most ordinary people lack access to legal resources; when so many cases involve at least one pro se litigant, often from a marginalized community; when there is an overwhelming asymmetry between pro se parties and members of the gilded class with access to effective counsel; when too many lawyers fail to display candor to the tribunal, or to anyone else; and when too many tribunals lack the resources or the stomach to do anything in response to a plague of dishonest lawyers. 

Honestly criticizing one’s own tribe is among the hardest tasks for any social species. It’s hard for lawyers and judges, too. But someone has to do it. Leishman respectfully requests that this Court affirm the decision of the Court of Appeals.

These days I approach every legal task as a brand new writer/lawyer challenge. So when I drafted my Supplemental Brief for the Washington Supreme Court, I tried to come up with some fresh material. My fact-checking got a little carried away. I prettified some trusty old arguments, putting lipstick on Wilbur and making a silk man-purse out of Spider-Ham. The conclusion ended more in sorrow than in anger. My brief even cited a few new cases and statutes.

And I highlighted one sentence from a 1989 legislative committee report in the Washington House of Representatives.

The primary legal question before the Supreme Court is the proper interpretation of the 
Brenda Hill Bill, Washington’s citizen whistleblower protection statute. During the 1980s, Brenda Hill and her husband bought a home from a real estate developer. When the Hills tried to refinance their mortgage in 1987, they discovered the developer had not paid any excise tax for two years, imperiling the title to homes purchased by the Hills and three hundred other families. According to the House of Representatives committee report, “Mrs. Hill reported this violation to the Department of Revenue. As a result of the disclosures made to state officials, the Hills were sued by the developer. 

While I was assembling the Appendix to my Supplemental Brief, I carefully went through the Brenda Hill Bill's entire legislative history for at least my fifth time. I flagged two items I
d seen before but never really paid attention to. One was the very next sentence from the legislative history. I underlined it for the Supreme Court:

Mrs. Hill asked that the state defend her, but was told that the state had no authority to do so. The cost of defending the developer's suit has forced the Hills into bankruptcy. 

Supplemental Brief at 11-12 (citing Appendix at 62). The Washington Legislature passed the Brenda Hill Bill to protect other private citizen whistleblowers from suffering the same fate as Mrs. Hill’s family. 

I began this strange journey of recovery, research, writing, and lawyering almost three years ago, after my life was transformed by Post-Traumatic Stress Disorder and dishonest lawyers. 

As I wrote last month in 
Well-Picked Battles, the most visible ring of the legal circus is my appeal before the Washington Supreme Court. The Supreme Court has both the authority and the resources to give these issues the attention they need. However, the circus also includes various other related and semi-related proceedings that are currently pending before separate courts and administrative tribunals, such as the Washington State Bar Association’s lawyer discipline system, the Executive Ethics Board, and the state’s Office of Risk Management. 

Regardless of the venue, this tragic story comes down to the same handful of fundamental truths

1.     Representatives of the State of Washington injured me, including the State’s top employment lawyers and the attorney-investigator they hired. See “My Story So Far”; Notice of ClaimComplaint.

2.     When the Washington Legislature passed the “Brenda Hill Bill” to protect private citizen whistleblowers, it did not intend to grant absolute immunity from civil liability for injuries caused by dishonest government vendors. See Leishman v. Ogden Murphy Wallace PLLC, 10 Wn.App.2d 826 (2019)Answer to Petition for Review.

3.     Senior lawyers at the Attorney General’s Office acted unethically when they directed their investigator to interrogate me alone in his office after they knew Id hired a lawyer to represent me in my employment dispute. See In re Discipline of Haley, 156 Wn.2d 324 (2006); Undisputed RPC 4.2 Violation Timeline; “Bar Discipline.”

4.     The Washington Constitution forbids the Attorney General’s Office from using tax-payer funds to represent private individuals, including State employees accused of unethical conduct. See Sanders v. State, 166 Wn.2d 164 (2010)Undisputed Timeline of Ethics in Public Service Act violations by Attorney General’s Office; “Toxic Entitlement.”

Eventually, even lawyers can focus on what matters.

All four issues involve the same increasingly common real-world situation. Procedurally, each issue arose out of an ordinary legal dispute where (1) there was a victim without an attorney; (2) all the other parties were well-financed institutions with access to a certain kind of lawyer; and (3) everyone was facing off before a busy legal tribunal. 

These are challenging times for Americans who can't afford to hire a lawyer. Forty years of powerful anti-democratic forces have resulted in the Donald Trump Administration, the Mitch McConnell Senate, and the John Roberts Supreme Court. Even when the outcome of a particular legal case doesn’t turn on some party’s power or privilege, any adjudication system is doomed when the decision-makers’ primary goal degenerates from getting it right, to getting it done, to getting rid of it. Power corrupts; bureaucratic power curdles. That’s why nations fail.   

Fortunately, the legal situation in Washington State is much less dire. We have a strong bench, vibrant voluntary bar associations, engaged citizens, and committed public servants. I’ve attended a lot of inspiring access-to-justice conferences across the state. 

Nevertheless, once I began seeking legal relief alone in the real world, I discovered all those earnest bar meetings were a complete waste of time. My personal experience with the legal system, while extraordinary in many ways, is utterly typical. It turns out the problem isn’t the number of pro se litigant who lack access to effective counsel. The problem isnt societal inequality, or shrinking civil legal aid budgets, or over-burdened courts. The problem with the legal system is the lawyers. 

In Rex Stout's mystery novella Before I Die, my favorite literary detective Nero Wolfe describes attorneys as “insufferable word-stretchers”: “They think everything has two sides, which is nonsense.”

Above I listed four fundamental truths about my case. None involves a close call. Anyone who reads the actual evidence and the controlling legal authorities immediately recognizes that each question is a bona fide No Brainer

What makes a straightforward factual or legal issue seem close – and what lures many tribunals into getting things wrong, at least the first time – is the presence of too many deep-pocketed parties represented by lawyers who are willing to say just about anything. When the parties themselves are lawyers too, the plague spreads exponentially.

Practicing law can harm your mental health. I’ve repeatedly written about the dangerous relationship between lawyers and the truth, in blog essays like “Confabulation, 7-Eleven Law School is accredited!, Lilies That Fester, and Some Days We Are All Less Smart.

Even honest legal arguments involve too many words. So last year I edited my elevator speech down to one sentenceThis case is about what happen when lawyers start lying, and then won’t stop. I embarked upon a new phase in my litigation and public education campaign, giving the lawyers from the Attorney General’s Office and Ogden Murphy Wallace enough rope to hang each other. And then I waited. 

The results have been gratifying. The State finally produced numerous incriminating documents in response to my persistent requests under the Public Records Act. In September 2019, the Court of Appeals emphatically reversed the trial court’s erroneous decision, and reinstated my lawsuit against Ogden Murphy Wallace and its partner Patrick Pearce. In January 2020, the Washington Supreme Court agreed to accept review because this case presents important issues of substantial public interest that should be determined by the Court. 

Meanwhile, my inept and dishonest opponents keep creating more opportunities for me to underscore the same fundamental themes. Because, as the world sees every day with Donald Trumpwhat lying lawyers lie about, more than anything else, is their own lying.


As I drafted my Supplemental Brief to the Washington Supreme Court, I noticed one other interesting item from the Brenda Hill Bill legislative history. The government official responsible for the sentence I underlined for the Supreme Court was Representative Marlin Appelwick, the Chair of the House Committee on Judiciary. Thirty years later, Judge Marlin Appelwick was one of the three members of the Court of Appeals who reinstated my lawsuit against Defendants

If you haven’t noticed already, in my story everything is connected.

Click here for more information about my lawsuit against Ogden Murphy Wallace PLLC and Patrick Pearce

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